UNITED STATES v. VASQUEZ NAVARRO (2019)

Carlos Alberto Vasquez-Navarro appeals the 70-month sentence imposed following his guilty plea conviction of illegal reentry. Relying on United States v. Herrold, 883 F.3d 517, 529, 541 (5th Cir. 2018) (en banc), petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127), he argues that the district court erred by applying a 16-level adjustment pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) because his two prior felony burglary convictions under Texas Penal Code § 30.02(a) are not categorically crimes of violence. The Government correctly concedes that the district court’s application of the 16-level adjustment is erroneous in light of Herrold. See United States v. Godoy, 890 F.3d 531, 536 (5th Cir. 2018). Accordingly, the Government raises the following arguments to preserve them for further review: (1) that, under the categorical approach, § 30.02(a) is a crime of violence because all of its subsections match the generic burglary offense and, alternatively, (2) that the Texas burglary statute is divisible and that Vasquez-Navarro’s prior convictions are crimes of violence under the modified categorical approach.

The Government has made no attempt to show that the error in this case was harmless. See United States v. Martinez-Romero, 817 F.3d 917, 924 (5th Cir. 2016). Instead the Government asks that we hold this case in abeyance pending the certiorari determinations in Herrold and in a similar case, United States v. Quarles, 850 F.3d 836 (6th Cir.), petition for cert. filed (Nov. 24, 2017) (17-778). We decline to do so. The sentence in this case is vacated and the matter is remanded for resentencing in light of Herrold.

SENTENCE VACATED AND REMANDED FOR RESENTENCING. MOTION DENIED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.